Victory in Berlin, CT: Court Rules Town Council Has Authority to Enact Zoning

It might seem self-evident to some, but Very Intimate Pleasures this year challenged the authority of the town council of Berlin, CT to enact zoning ordinances. VIP is trying various approaches to get the courts to invalidate a Berlin ordinance that requires adult enterprises to stay at least 250 feet from homes. The July 13 Hartford Courant reports:

…town officials believe this ruling is a crucial win in its ongoing war with VIP, because it upholds the town’s authority to regulate where adult businesses can operate…

Silver [VIP attorney Daniel Silver] contends that the town council has no authority to create a law restricting the location of a business. Berlin’s sexually oriented business ordinance, enacted in 2000, prohibits adult clubs, shops and theaters from operating within 250 feet of residentially zoned land, a fact that has blocked VIP’s attempts to open in a former furniture store at 717 Berlin Turnpike, next to a middle-class neighborhood.

In January, a federal judge dismissed Silver’s argument. Silver, representing Gold Diggers LLC, filed a lawsuit against Berlin in May 2006 after town officials denied the firm a permit to open as a topless bar in the former Infrared Cafe on New Britain Road. Neighbors had often complained about loud noise and boorish behavior spilling outside the Infrared, previously known as the strip lounge Showplace, when the establishment was still in business.

Senior U.S. District Judge Warren Eginton ruled that although planning and zoning boards usually have the authority to decide where businesses can be located, he interpreted state law as allowing municipalities to “regulate and prohibit the carrying on of any business with adverse impacts to public health…”

The trial date for the federal case, which is based on free speech and constitutional grounds, is set for Nov. 29. Blumenthal considers the battle a “test case” that affects municipalities across Connecticut that choose to regulate adult businesses within their borders, and in April was allowed to appear as a friend of the court….

Citizens, Officials Use Zoning to Protect Quality of Life in Berlin, ConnecticutHartford Courant, 11/2/06“The
town zoning appeals board rejected a challenge from Very Intimate
Pleasures Wednesday night, blocking the company’s plan to open an adult
bookstore and sex novelties shop on the Berlin Turnpike and possibly
sending the matter to court… About 20 residents spoke against the
business, saying that it would wreck property values, potentially
endanger public safety and that it was too close to homes… During the
meeting, [resident Laura] Michaud brought out an enlarged photo of her
4-year-old daughter playing on a swing set. In the background was the
proposed VIP building.”

Connecticut
Attorney General Files Amicus Brief to Support Town of Berlin;
“Off-Site” Sexually Oriented Businesses are Fair Game for ZoningThe United States Supreme Court has firmly established that the right
to freedom of speech protected by the First Amendment is not absolute.
Although governments may not enact regulations for the purpose of
restraining speech based on its content, “so-called ‘content-neutral’
time, place, and manner regulations are acceptable so long as they are
designed to serve a substantial governmental interest and do not
unreasonably limit alternative avenues of communication.” Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 47 (1986). A regulation is “content-neutral” if it is
“justified without reference to the content of the regulated speech.”
Id. at 48…

…[T]he Court made clear not only that cities may regulate sexually
oriented businesses based on concerns for the businesses’ “adverse
secondary effects,” but also that evidence of such secondary effects
need not include studies of the regulating city itself. Specifically,
the Court explained that “[t]he First Amendment does not require a
city, before enacting such an ordinance, to conduct new studies or
produce evidence independent of that already generated by other cities,
so long as whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city addresses.” Id. at
51-52. Justice Kennedy’s concurrence in City of Los Angeles v. Alameda Books,
535 U.S. 425 (2001), on which VIP relies, reiterates this point and
notes that “very little evidence is required” to satisfy the city’s
threshold burden. See Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring); see also 535 U.S. at 438 (plurality opinion)…

Although most of these studies considered the secondary effects of all
types of SOBs, it should be noted that the Indianapolis Study [PDF link] and the Oklahoma City study [PDF link 1, PDF link 2] focused specifically on “adult bookstores.”
In the Indianapolis study, approximately 75% of real estate appraisers
surveyed responded that an adult bookstore would have a significant
negative effect on the value of both residential and commercial
properties within a one block radius of the store. See Indianapolis
Study, pp. 34 and 51. Most of these appraisers estimated that the
decrease in residential property values would be between 1 and 20%, but
21% of the appraisers predicted that the loss would exceed 20%. Id., p.
34. Similarly, in the Oklahoma City Study, 74% of responding real
estate appraisers indicated that an adult bookstore within one block of
a residential neighborhood would decrease property values. Thirty two
(32) percent of these appraisers believed that the decline would exceed
20%, while forty two (42) percent believed that the decline would be
between one and twenty percent. City of Oklahoma City, Community
Development Department, Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate Appraisers
(March 3, 1986). As the Fifth Circuit recently concluded, “[t]he
Indianapolis and Oklahoma City studies support the belief that off-site
sexually-oriented businesses cause harmful secondary effects to the
surrounding area in the form of decreased property value.” H and A Land Corp. v. Reliable Consultants, Inc., No. 05-11474, 2007 U.S. App. Lexis 3941 at *12 (5th Cir. Feb. 22, 2007).

The State is not aware of any formal studies of the secondary effects
of SOBs in Connecticut. There is no reason to believe, however, that
the secondary effects here are any different than in other States.
Indeed, in Manchester, Connecticut, where VIP recently opened a new
adult bookstore, it has made little effort to be a good neighbor.
Instead, it has provoked outrage from local residents by painting its
new store “neon yellow.” As one resident railed:

The building looks like a grotesque interpretation of Disney World,
with shades of Miami and Las Vegas. The front is marked with two-story
arched windows and fake columns. Topping it off on the third story is a
pyramid-type cupola. The entire exterior is painted the kind of yellow
that makes your eyes wobble. No nuance. The original building was
brick. The new owner painted over the brick. There’s no accounting for
taste, but this is a business that from the start was not welcome in
Manchester. The owner must have known that. Instead of working with
nearby residents on plans that might have calmed them, he erected this
horrible neon monument to retail sex at one of the town’s gateways.

In sum, it is vitally important that Berlin’s SOB ordinance be upheld.
Not only is the ordinance fully consistent with the First Amendment,
but upholding it ensures that cities and towns statewide will continue
to be able to enforce their own SOB ordinances and thereby protect the
health, safety and general welfare of their citizens and the quality of
life in communities statewide. As the Supreme Court has emphasized, a
municipality’s “interest in attempting to preserve the quality of urban
life is one that must be accorded high respect.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50 (1986), quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 (1976)(plurality opinion).

Secondary Effects Across America: 1977-1999
Indianapolis: From 1978-82, crime increases in the study areas were 23
percent higher than the control areas (46 percent higher than the city
as a whole). Sex-related crimes in the study areas increased more than
20 percent over the control areas. Residential locations in the study
areas had a 56 percent greater crime increase than commercial study
areas. Sex-related crimes were four times more common in residential
study areas than commercial study areas with sexually oriented
businesses.

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